Selected quad for the lemma: england_n
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A29950
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A New-Years-gift for the anti-prerogative-men, or, A lawyers opinion, in defence of His Majesties power-royal, of granting pardons as he pleases wherein is more particularly discussed the validity of the E. of D's pardon, by way of a letter to a friend.
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Brydall, John, b. 1635?
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1682
(1682)
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Wing B5264; ESTC R19863
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12,953
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38
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Lordships by the Commoners be fit or requisite for the King to pass into Laws but also of Writs of Error and of Matters of Fact either not determinable in other Courts yet in regard of nicety or special Matter they cannot well discern or judge Moreover to these Lords of Parliament belongeth a power and that derived from the Vide Cottons Tower Records Crown of giving Judgments in Cases of Treason of Impeachments for several Crimes of Slanders of Peers of Breaches of Priviledges both upon Peers and Commons together with Capital Censures of Beheading Hanging Drawing Quartering Imprisonment Banishment Fine and Forfeiture both of Lands Goods and Offices inflicted on Offenders Now these two The Lords and Commons I mean are convened by the Kings Writs to assist him with their Advice in difficult and weighty Matters relating to Church and State And in so doing they ease their Soveraign Lord of much Labour but do not thereby deprive him of any one Tittle of Royal-Power They may says the most glorious Royal Martyr remember that at best they sit in Parliament as my Subjects not my Superiours called to be my Counsellors not Dictators Their Summons extends to recommend their Advice and not to command my Duty You must know that by calling a Parliament which is but a Meeting of the King and his Subjects and such they continue as well collectively as they were before singly and a Meeting in its own nature dissolvable at pleasure the King is not grown less or departed with any thing either by way of Abdication or Communication of the soveraign Power that is vested in him as King of England That were indeed to make more than one Soveraign in a Kingdom a thing altogether inconsistent with Supremacy and Monarchy So that the Soveraignty must be totally in the King and where that is there must be Gladii potestas the power of Life and Death a Right as well of pardoning as of punishing Offenders Like as divers other things do solely belong to the King as Prerogatives incident to His Imperial Crown and Royal Dignity whereof the Subject hath nothing to do as the power of Calling Holding Proroguing and Dissolving of Parliaments of advancing to Honours Offices and Commands of raising of Armies of entring into Leagues and Treaties of Founding Corporations Guilds and Fraternities of coyning of Money of making Letters of Denization to whom and how many he will Together with many other things that appertain to His Majesty as special Flowers of His Crown The King of England I must confess may limit himself by Promise or Contract in Parliament as he hath been pleased to restrain himself from the use of that power which makes new Laws and repeals old without the consent of the Lords and Commons in Parliament as likewise from raising Money upon the Subject without their consent not to pardon the Offences of such Persons as are before Impeach'd in the High Court of Parliament without the consent of his two Houses or the like But then I must demand that such a Grant be produced let it be made appear by an authentick Record that the King of England has done so And when such a Record is shewn I shall be as ready to plead against the validity of the E. of D's Pardon as I do now for it Till then I desire to be excused Besides 't is not enough to affirm That there cannot be found any President in the Parliament Rolls wherein any Peer of the Realm has been pardoned by the King after an Impeachment has been transmitted to the Lords by the Commons but a President must be offered to prove That a Pardon has been adjudged void where it has been pleaded by a Peer in a later that was charged with High Treason in a former Parliament But further yet Sir If the King can under his Great-Seal command all Process and proceedings in Criminal Causes to cease against one accused before in Parliament then sure what should hinder but the King may pardon such a one For a discharge of any further proceeding against such a one directed to the Judges and their Award thereon That the Party accused shall go sine die is equivalent to a Pardon under the Broad-Seal of England now that there hath been such a kind of discharge and thereon an Award given by the Judges in the Kings-Bench to that purpose I will make good by this Record following Steven Gravesend Pasch 4.7 E. 3. Coram Rege Rot. 53. Co. 3. Inst 239. Bishop of London was accused in Parliament for adherency to Edmond Earl of Kent in his Treasons where by Order of Parliament the matter was referred to the Kings-Bench to be tryed where the Bishop pleaded Not-Guilty and afterwards was discharged by the Kings Writ under the Great-Seal directed to the Judges of the Kings-Bench to this effect Licet venerabilis Pater Stephanus London Episcopus per breve nostrum coram nobis ad sectam nostram implacitetur de eo quod ipsi Edmundo nuper Comiti Kantiae adhaesisse debuerat Quia tamen praedict Episcopus de adhaesione praedict omnino immunem reputamus vobis mandamus quod placito praedict coram nobis ulterius tenen omnino supersedeatis Teste meipso apud Westm 12 die Decembr Anno Regni nostri 4. The Award of the Court that is given thereupon is very remarkable viz. Cujus brevis praetextu consideratum est quod praedictus Episcopus eat inde sine die c. Et ulterius non procedatur versus eum Sir Edward Coke upon this same Record comments thus This man it may be thought that the taking of the Pardon should be an implyed Confession of the Fault and therefore went a new way but no man that is wise and well advised will refuse God and the Kings Pardon how often soever he may have it for there is no man but offendeth God and the King almost every day and the Pardon is the safest and surest way Out of this notable President and the Comment of Sir Edward Coke thereon we may make these several Remarques First That though Steven Gravesend was charged with High Treason before in Parliament yet the Judges of the Kings-Bench upon the Kings Writ to them directed under the Broad-Seal did award that the said Steven should go sine die Et ulterius non procedatur versus eum Secondly That this same Award was given by the Judges before any Sentence or Judgment passed either by themselves or by the Lords in Parliament Thirdly That if this manner of proceeding with Steven Gravesend had been contrary to the Laws and Customs of Parliament the Lords and Commons would no doubt have disputed the Kings Prerogative in this Case And I cannot learn out of any Antiquary or Historian that this same Bishop of London was ever questioned afterwards in Parliament or the Kings-Bench Judges for thus obeying the Kings Writ Fourthly That if this manner of proceeding in Gravesend's Case be valid in Law as it is
high Court of Parliament That with the Soveraign Prince resideth the prime and supreme Power of interpreting of his own Laws Rescripts and Grants cannot be denied for both the Common and Civil Law Professors do affirm Bracton lib. 2. c. 16. num 3. Fleta lib. 3. c. 14. num 4. D. 28.6 43. D. 50. 17.191 c. 1.14.12 1. Princeps conditor interpres Legum unicus That in doubtful and obscure points the interpretation and will of the Prince is to be expected since it is his part to interpret who made the Law or Grant Now our King as the supreme Legislator and interpreter has communicated this his Authority to some particular persons for the interpreting and expounding his Laws and Grants And the reason why he has so delegated this power to them is rendred by Fortescue thus You shall better says he to H. 6. execute Judgment by others than by your self neither hath it been seen that any King of England hath pronounced Judgment with his own mouth The former part of Fortescue's words are Orthodox but the latter part are not so If the famous Antiquary Mr. Selden may be credited for he in his Notes ad cap. 8. of Fortescue affirms that Kings themselves often sate in Court in the Kings-Bench and in the Rolls of Charters under King John and the time near him often occur Grants that such or such English should not be Impleaded or put to Answer nisi coram nobis vel Capitali Justitia nostra and to Normans nisi coram nobis vel Capitali Seneschallo nostro Here coram Capitali Justitia is divided from coram Rege That Kings have in former times personally sate in the Kings-Bench Vide Co. Litt. 7.1 b. Cambdens Britannia in Engl. f. 178. Sir Henry Woottons Hist. of Christendom f. 213. Co. 4. Inst. 73. the last signifying before the Kings person although now Pleas held in the Kings-Bench before the Successor of the Capitalis Justitia are entred coram Rege But è diverticulo in viam we will return to the point proposed and shew you who are the competent Judges of the validity or invalidity of a Pardon pleaded in the house of Lords In order thereto we must distinguish betwixt matters moved in the upper House of Parliament that concern the Customs and Priviledges thereof and those matters that purely concern the common and Statute Laws of the Realm The former must be determined adjudged and discussed by the course of Parliament Co. 4. Inst. f. 15. Co. lib. 13. f. 63. and not by the Civil Law nor yet by the Common Laws of this Realm used in more inferiour Courts which was so declared to be secundum Legem consuetudinem Parliamenti concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione is for the Commons for any thing moved or done in the House of Commons But on the other side if any question ariseth meerly upon the Common or Statute Law the Judges of England are to give their Opinions when ever it be demanded by the Lords in their House as for instance if a Pardon be pleaded by a Peer or any other person there and 't is doubted whether it be good or not in Law Vide Sir Robert Filmers Patriarcha where you may see of what Authority the Opinion of the Judges hath been in Parliaments This Query I humbly conceive must be referred by the Lords to the Kings Justices for their solution And as all the Judges or the majority of them shall declare themselves pro or con the Lords of Parliament are wont usually to determine and give sentence accordingly But if the question be whether the manner and circumstances that attend such a Pardon be valid or not by the Custom and Law of Parliament then the Lords of Parliament themselves are solely to decide the doubt without any Reference to the Opinion of the Judges for they are not to intermeddle with any Matters of Parliament Vide Cottons Collect f. 651. 31 H. 6. num 27. and so have they in several Parliaments confessed This Sir may suffice as to the fourth particular by me propounded and now I hasten to the last point of all and that is to consider of the E. of D's Case in particular but before I shall handle it I must tell you this That where-ever I have or shall mention Peers or Lords of Parliament I intend as well the Lords Spiritual as the Lords Temporal for I am very well satisfied now as I understand you are that the Lords Spiritual have as much Right in virtue of their Temporal Baronies to sit in Capital Cases as the Temporal Lords can pretend to and I am verily persuaded that there was never any Criminal Cause handled in Parliament where the Lords Spiritual did not sit either personally or by Proxy And if not one of these ways yet undoubtedly they upon their withdrawing ever entred their Protestation for the saving of that same Right and Priviledge And so I now come to treat of the validity of the E. of D's Pardon And I take this Pardon me if I mistake to be his Case The E. of D. is impeached before the Lords E. of D's Case by the Commons of England of High Treason and of several other misdemeanors But before any further proceeding in proof of the Charge against him His Majesty dissolves that Parliament and upon the dissolution thereof the King grants to the E. of D. a Pardon of all Treasons and Misdemeanours whatsoever And then His Majesty calls another Parliament whereat the Commoners exhibit new Articles of the same Treasons and Misdemeanors against the said Earl whereupon he pleads the said Pardon to this second Impeachment in the House of Lords Now the Question will be The Query whether this Pardon be good or not The Resolution whereof will depend on an Answer given to this Query following viz. Whether his Majesty by virtue of his Prerogative-Royal can pardon in the interval of two Parliaments those Crimes whereof the E. of D. was impeached in the former Parliament I humbly conceive That his Majesty can by His Prerogative-Royal grant such a Pardon I presume it will be admitted that had this Pardon been purchased before any Impeachment in Parliament it had been good But the granting of it after Articles exhibited in the House of Lords makes the doubt which I shall endeavour thus to clear The Commons 't is true as the general Inquisitors of the Realm have authority from the King to examine any Crime be it Treason Felony Oppression Bribery Extortion or the like committed by a Lord of Parliament Spiritual or Temporal and if they find by the Vote of the House the Charge to be true they have power to transmit the same to the Lords with the Witnesses and Proof As for the Peers they are the Supreme Court of Judicature in this Nation not only to judge whether matters presented to their